MITCHELL LOEWEN v. THE NEW ORLEANS LOUISIANA SAINTS LLC AND BERKLEY SPECIALTY UNDERWRITING MANAGERS LLC (2025)

REVERSED; JUDGMENT RENDERED

SUS

FHW

TSM

This is the second appeal in this matter. Claimant, Mitchell Loewen, seeks review of the workers’ compensation court's February 10, 2025 judgment in favor of defendants, The New Orleans Louisiana Saints, LLC and Berkley Specialty Underwriting Managers, LLC, which dismissed his claim for permanent partial disability (PPD) benefits for impairment to his left knee. In order to recover PPD benefits, La. R.S. 23:1221(4)(q) requires a claimant to establish his percentage of anatomical loss or impairment pursuant to the most recent edition of the American Medical Association's (AMA) “Guidelines to the Evaluation of Permanent Impairment.” The workers’ compensation court denied Mr. Loewen's claim based on its finding that his medical expert evidence failed to meet this standard. For reasons explained more fully below, we find that several of the factual determinations the workers’ compensation court made to reach this decision were inaccurate and contrary to the undisputed evidence.

Thus, we reverse the workers’ compensation court's February 10, 2025 judgment and find that Mr. Loewen introduced competent and reliable evidence from his treating orthopedic surgeon to establish his impairment rating in accordance with La. R.S. 23:1221(4)(q). We further render judgment in favor of Mr. Loewen in the amount of $13,244.00, and order defendants to pay the costs of this appeal. However, we deny Mr. Loewen's claim for penalties and attorney's fees.

FACTS AND PROCEDURAL BACKGROUND

A detailed discussion of the factual and procedural background of this matter is contained in our prior opinion, Loewen v. New Orleans Louisiana Saints, LLC, 22-507 (La. App. 5 Cir. 6/7/23), 367 So.3d 846, writ denied, 23-939 (La. 10/31/23), 372 So.3d 812. In Loewen, we amended the workers’ compensation court's prior judgment to reflect that Mr. Loewen injured his left knee, rather than his left ankle, while in the course and scope of his employment with the New Orleans Saints on December 6, 2019. Id. at 852-53. We also affirmed the decision to deny Mr. Loewen's claim for supplemental earnings benefits. Id. at 853-55. Finally, we remanded the matter for a ruling on Mr. Loewen's alternative claim for PPD benefits, including “a determination of whether Mr. Loewen established his disability or impairment rating under the American Medical Association's guidelines for evaluating permanent impairment, pursuant to La. R.S. 23:1221(4)(q).”¹ Id. at 855-56. This issue is the subject of the current appeal.

On remand, the workers’ compensation court set the matter for trial on July 1, 2024. The parties did not introduce any new evidence at the trial. But they did stipulate that Mr. Loewen would be entitled to receive the applicable maximum workers’ compensation rate in the amount of $688.00 per week, if the court awarded PPD benefits.² Following oral argument by the parties, the workers’ compensation court took the matter under advisement. On February 10, 2025, the court rendered judgment in favor of defendants and dismissed Mr. Loewen's claim for PPD benefits based on the following findings:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Claimant, Mitchell Loewen, failed to establish his disability or impairment rating under the American Medical Association's guidelines for evaluation impairment, pursuant to La R.S. 23:1221(4)(Q).

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IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the American Medical Association's Guides are used by physicians to assess permanent impairment ratings. The degree of an injured worker's impairment must be determined by medical expert opinions.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the records show Claimant's impairment rating was determined by an unlicensed physical therapist. Casey Garretson was not a board certified or licensed occupational therapist. Although a physical therapist was listed on the report, he had no involvement in the evaluation and his involvement was for billing purposes only. Garretson graduated occupational therapy school, took a 6th Edition course on impairment ratings, and had training through Functional Testing Centers. However, he was not a licensed occupational therapist qualified to give an expert medical opinion on impairment rating.

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Garretson did not review any MRIs. He relied on the doctor's notes, subjective findings, and information Claimant “filled out on a form.” The information from the form was not documented in the records. Dr. Ylanan concurred with Garretson's opinion. However, Dr. Ylanan did not participation (sic) in the examination, review, or calculation of the impairment rating.

On April 10, 2025, Mr. Loewen filed a motion for devolutive appeal, which the workers’ compensation court granted on April 11, 2025.

Impairment Rating

The central issue before this Court on appeal is whether the impairment rating Mr. Loewen introduced into evidence was sufficient to meet the standard set forth in La. R.S. 23:1221(4)(q) - that is whether the percentage of anatomical loss to his left knee is “as established in the most recent edition of the [AMA] ‘Guides to the Evaluation of Permanent Impairment.’ ”³ Therefore, we begin our analysis with a review of the factual and procedural history pertaining specifically to the impairment rating at issue.

The first trial in this matter was set on September 2, 2021. On June 15, 2021, defendants filed a motion for summary judgment arguing in part that Mr. Loewen did not have an impairment rating to prove his alternative claim for PPD benefits. In his opposition to the summary judgment motion, Mr. Loewen explained that he was in the process of obtaining an impairment rating from his treating physician in Arkansas, Dr. Ramon C. Ylanan.⁴ Mr. Loewen attached copies of communications between his attorney and Dr. Ylanan on July 9, 2021, wherein Dr. Ylanan explained that when a workers’ compensation patient needs an impairment rating, he sends the patient to a physical therapist for a functional capacity evaluation (FCE) and impairment rating. Dr. Ylanan also indicated that he would need to reevaluate Mr. Loewen before he could provide an impairment rating. The workers’ compensation court heard arguments on the summary judgment motion on July 23, 2021, and took the matter under advisement.

Shortly after the hearing on the summary judgment motion, the discovery deadline expired on August 2, 2021. Two weeks later, on August 16, 2021, Mr. Loewen's counsel emailed defense counsel “Dr. Ylanan's report dated August 12, 2021 (with addendum),” which also included reports for the FCE and “Sixth Edition Impairment” rating prepared by Functional Testing Centers, Inc.

Functional Testing's Reports to Dr. Ylanan

The “Functional Capacity Evaluation” and Sixth Edition Impairment rating reports that Functional Testing sent to Dr. Ylanan were both electronically signed by “Stuart A. Jones, PT, DPT, CDA, CFE, Physical Therapist” and “Casey Garretson, BS, CFE, CEAS, Certified Functional Evaluator.” Following their signatures, the impairment rating contained the following language and signature line for Dr. Ylanan's approval: “I have reviewed and agree with this impairment rating.” The facsimiles forwarding the FCE and impairment rating from Functional Testing to Dr. Ylanan contained messages from Functional Testing's owner, Rick Byrd, indicating that with respect to the FCE, Mr. Loewen “does have mild deficits with crouching and stair climbing, but is very functional overall (outside the scope of playing professional football).” With respect to the impairment rating, Mr. Byrd commented that Mr. Loewen “did have objective findings to support a knee impairment but did not have objective findings in the physical examination or through medical records that indicated ankle impairment.”

More specifically, the impairment rating report indicated that the injuries to Mr. Loewen's left knee included: “1. Chondromalacia of Left knee 2. Derangement of posterior horn of lateral meniscus, left knee.” And the surgical history referenced two prior ACL reconstruction surgeries on Mr. Loewen's left knee in 2011 and 2014. The report also indicated that a June 11, 2020 MRI by Dr. Tommy Hinton revealed:

The presence of a tear in the posterior root ligament attachment site of the lateral meniscus, there is stable abnormal signal throughout the posterior horn and body of the lateral meniscus likely related to a prior meniscal tear and repair, finding consistent with a prior partial meniscectomy involving the posterior horn and body of the medial meniscus, and there is degenerative osteophyte formation involving the bilateral femoral condyles and the medial and lateral tibial plateau.

The impairment rating listed Mr. Loewen's current complaints as “[l]eft knee and ankle pain that is increased with walking for prolonged periods and physical activities that require bending/squatting from the knees.”

With respect to the calculation of the impairment rating, the report explained that the:

“6th edition guidelines requires identifying the impairment Class of Diagnosis condition (CDX), which is then adjusted to grade modifiers based on Functional History (GMFH), Physical Examination (GMPE), and Clinical Studies (GMCS). The net adjustment formula is (GMFH - CDX) + (GMPE – CDX) + (GMCS – CDX).

The report contains the following explanations and calculations to determine the 11% impairment rating using the AMA's Guide to the Evaluation of Permanent Impairment, Sixth Edition:

Tabular or graphical material not displayable at this time.

Tabular or graphical material not displayable at this time.

Dr. Ylanan's Report

Dr. Ylanan's August 12, 2021 report consists of progress notes from Mr. Loewen's office visit on that same day. The report states that Mr. Loewen was there “to follow-up for his left knee pain, left ankle pain, and to review his functional capacity eval (sic) and impairment rating.” Dr. Ylanan indicated that he reviewed Mr. Loewen's past medical and surgical history, including the surgeries on his knee, as well as his social and family history. The report also indicates that Dr. Ylanan conducted an examination of Mr. Loewen's left knee. During his examination of the patella or kneecap, Dr. Ylanan found crepitus, which is a popping or grinding sound during movement. Dr. Ylanan also stated his examination of the knee was consistent with the worsening of Mr. Loewen's “medial knee pain.” Dr. Ylanan also noted swelling in the knee and indicated that Mr. Loewen's exam that day was “slightly worse compared to last time.” Following his examination, Dr. Ylanan assessment included “chondromalacia of left knee.”

The report also indicated that Mr. Loewen reported that he was currently working on his farm in Hawaii and that “at the end of the day he has significant pain, and swelling in both joints sometimes, even after standing just for over 20 minutes in the same position.” Mr. Loewen also reported that his pain was affecting his daily activities and he was “unable to run or even go on long walks with his family, and is getting in the way of what he wants of an active lifestyle.” Dr. Ylanan recommended that Mr. Loewen receive preventative treatment, including physical therapy and injections, but indicated that he may eventually need a total knee replacement.

The report further indicates that following his consultation with Mr. Loewen and examination of his left knee, Dr. Ylanan reviewed the findings in Functional Testing's impairment rating and agreed with the percentage of impairment assigned in the report:

We reviewed his FCE and impairment rating today, and I agree with the findings for both. He was provided with an 11% impairment in the lower left extremity, 4% whole body impairment.

Motion to Strike

On August 25, 2021, defendants filed a motion to strike to prohibit Mr. Loewen from introducing the FCE, impairment rating, and any testimony related to them, into evidence at the trial. In their supporting memorandum, defendants argued that they did not receive the FCE and impairment rating until August 16, 2021, two weeks after the discovery deadline and two weeks prior to trial. Defendants further argued that they were prejudiced by the late disclosure because they did not have time to conduct any depositions or otherwise refute the reports.

Due to Hurricane Ida, the motion to strike and September 2, 2021 trial were continued for four months to January 10, 2022. On January 7, 2022, the workers’ compensation court denied defendants’ motion for summary judgment due to the existence of genuine issues of material fact. Prior to the start of the trial, the workers’ compensation court heard oral arguments regarding defendants’ motion to strike the FCE and impairment rating. During the hearing, defendants raised the same arguments regarding the untimely production of these reports. They also argued that the FCE report did not consider Mr. Loewen's pre-existing injuries prior to playing for the Saints, but they did not raise any specific objections with respect to the calculations or explanations contained in the impairment rating. Following oral argument, the workers’ compensation court denied defendants’ motion to strike, but ruled that it would leave the trial open and allow defendants the opportunity to depose Mr. Loewen's expert and to retain their own expert.

Following the trial, defendants deposed Casey Garretson, the Functional Testing employee who conducted Mr. Loewen's evaluation for the FCE and impairment rating but did not retain their own expert. On February 25, 2022, the parties resumed the trial and defendants introduced Mr. Garretson's deposition into evidence without any further arguments from the parties. The workers’ compensation court also granted the parties time to file post-trial memoranda.

Post-Trial Memoranda and Casey Garretson Deposition

In their post-trial memorandum filed on April 19, 2022, defendants explained that following Mr. Garretson's deposition, they asked the workers’ compensation court for permission to file a Daubert ⁵ motion. They contend that the court denied their request and instructed them to address this issue in their post-trial memorandum.

With respect to the impairment rating, defendants argued in their post-trial memorandum that the workers’ compensation court should disregard this evidence because it was unreliable, based on subjective and/or partial information, and was completed by an unqualified provider. Defendants argued that Mr. Loewen needed expert medical testimony to establish his impairment rating under La. R.S. 23:1221(4)(q). They asserted that Mr. Garretson was not qualified to provide an expert opinion because he was not a licensed physician or a licensed occupational therapist at the time he conducted the evaluations, and he did not have adequate training or education.

Defendants also argued that when asked during his deposition, Mr. Garretson did not know the qualifications required to conduct an impairment rating and could not recall how he calculated the impairment rating for Mr. Loewen's left knee. They complained that Mr. Garretson could not remember the specific medical records he utilized to complete the impairment rating and failed to consider the impact of the two prior ACL reconstructions that Mr. Loewen had in college prior to his NFL career on the impairment of his knee. Defendants also complained that a portion of the impairment rating relied on Mr. Loewen's subjective responses to questions regarding his abilities, but Mr. Garretson did not document Mr. Loewen's responses.

Our review of Mr. Garretson's deposition reveals that many of defendants’ characterizations of his testimony are overstated. With respect to his education and training, Mr. Garretson testified that he received a Bachelor of Science degree in exercise science from the University of Central Arkansas in 2016, which he completed as a prerequisite for occupational therapy school. He explained that an exercise science degree involves the study of movement. In 2017, he obtained a certification to perform FCEs from Functional Testing and an additional certification from Occupro.⁶ He estimated that he performed 50 or 60 FCEs in 2017 alone. Mr. Garretson then started occupational therapy school in 2018 and completed a three-year doctorate program in August 2021.

Mr. Garretson explained that his specific qualifications to conduct the impairment rating included his undergraduate and graduate degrees, as well as training he obtained from Functional Testing. He also completed a course through Ergo Science that taught him “how to effectively do impairment ratings in the Sixth Edition.” Mr. Garretson estimated that he had completed 150 impairment ratings since 2017.⁷

He further explained that on August 11, 2021, when he conducted Mr. Loewen's impairment rating, he had graduated from occupational therapy school, but had not yet received his board certification or his license from the Arkansas State Medical Board.⁸ Mr. Garretson testified that because he did not have his license at that time, Stuart Jones, a physical therapist employed by Functional Testing, looked over his impairment ratings before they were sent to a patient's doctor.⁹ He agreed, though, that Mr. Jones was not present during Mr. Loewen's evaluation on August 11, 2021.

During the deposition, defense counsel also asked Mr. Garretson about the information he relied upon to calculate the impairment rating. Mr. Garretson explained that he relied on doctor's notes and diagnoses contained in Mr. Loewen's medical records, as well as physical findings from his evaluation of Mr. Loewen. Mr. Garretson indicated that he reviewed a large volume of doctor's notes and could not recall the exact source for each finding in the impairment rating. The second page of the impairment rating lists the physical findings as “moderate crepitation with active movement of the left knee that is consistent with repeated trial testing.” Mr. Garretson explained that crepitation is grinding or popping and that he heard and felt this in Mr. Loewen's knee.

Mr. Garretson also testified in detail regarding the process he followed to complete the impairment rating in accordance with the Sixth Edition of the applicable AMA guidelines. First, he determined from Mr. Loewen's medical records that he had a “Meniscal with partial medial and lateral tears.” The next step was to review the “Knee Regional Grid” in the AMA guidelines, Table 16.3 on Page 509 of the AMA guidelines. This table explains that “Mild Problem is a Class 1 Impairment (CDX) with a mid-range default value of 10% LEI [lower extremity impairment].” Thus, he determined that the CDX value was 1.

Next, Mr. Garretson had Mr. Loewen complete the American Academy of Orthopedic Surgeon's (AAOS) Lower Limb Instrument, which is a form questionnaire to determine functional history. Mr. Garretson explained that he did not have Mr. Loewen physically fill out a form but rather pulled the questions up on his computer. He asked Mr. Loewen the questions and then determined the score while consulting the AMA guidelines. He explained that examples of some of the listed questions were: “How stiff was your lower limb in the last week? How swollen was your lower limb in the last week? How painful was it to do these different activities ․walking on flat surfaces, going up and down stairs, laying in bed.” Mr. Loewen's responses indicated a mild deficit or problem, resulting in a grade modifier value of 1 for functional history (GMFH).

The next step involved the physical examination findings explained above - palpatory findings of crepitation - leading to a grade modifier physical examination (GMPE) value of two. Mr. Garretson explained that a score of two is moderate. Finally, he reviewed the clinical studies of Mr. Loewen's left knee and determined he had “documented chondromalacia of the left knee.” This corresponded with a grade modifier value of 1 for clinical studies (GMCS).

Mr. Garretson then used the net adjustment formula outlined above to determine the net adjustment value of one, which is then added to 10% resulting in an 11% impairment rating to the left lower extremity using Table 16-10, p. 530 of the AMA guidelines.

LAW AND DISCUSSION

On appeal, Mr. Loewen argues that the workers’ compensation court erred as a matter of law by denying him PPD benefits. As part of this argument, Mr. Loewen asserts that defendants waived their procedural opportunity to challenge his expert because they failed to file a Daubert motion prior to trial. Mr. Loewen argues, in the alternative, that the workers’ compensation court committed manifest error in its assessment of key factual findings that led the court to erroneously disregard his impairment rating.

Waiver Pursuant to La. C.C.P. art. 1425(F)(1)

We first address Mr. Loewen's argument that defendants waived their opportunity to challenge Mr. Garretson's qualifications to provide an expert opinion because they failed to file a pre-trial Daubert motion pursuant to La. C.C.P. art. 1425(F)(1).

The version of La. C.C.P. art. 1425(F)(1) in effect at the time of the 2022 trial provided as follows:

Any party may file a motion for a pretrial hearing to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence. The motion shall be filed not later than sixty days prior to trial and shall set forth sufficient allegations showing the necessity for these determinations by the court. (Emphasis added).  10

Mr. Loewen's counsel first sent the FCE and impairment rating reports to defense counsel on August 16, 2021, after the discovery deadline and just two weeks prior to the first trial date. Defendants promptly filed a motion to strike the FCE, impairment rating, and related testimony, as untimely. After denying defendants’ motion to strike, the workers’ compensation court granted defendants the opportunity to depose Mr. Loewen's expert after the first day of trial. Defendants stated in their post-trial memorandum that after they completed Mr. Garretson's deposition and learned of the issues regarding his qualifications, they asked the workers’ compensation court for leave to file a Daubert motion before the trial resumed in February 2022. However, the court instructed them to address these issues in their post-trial memorandum.

Considering these unique circumstances, we do not find that defendants waived their opportunity to challenge Mr. Garretson's qualifications or the impairment rating he prepared by failing to file a separate Daubert motion.

Permanent Partial Disability

Mr. Loewen next contends that the workers’ compensation court erred by finding that he failed to establish his impairment rating under the AMA's Guides to the Evaluation of Permanent Impairment pursuant to La. R.S. 23:1221(4)(q), as a matter of law, or alternatively, based on the court's incorrect factual findings.

La. R.S. 23:1221(4) provides for permanent partial disability benefits for anatomical loss of use, in relevant part, as follows:

(4) Permanent partial disability. In the following cases, compensation shall be solely for anatomical loss of use or amputation and shall be as follows:

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(h) For the loss of a leg, sixty-six and two-thirds percent of wages during one hundred seventy-five weeks.

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(o) In all cases involving a permanent partial anatomical loss of use or amputation of the members mentioned hereinabove, compensation shall bear such proportion to the number of weeks provided for herein for the total loss of such members as the percentage loss or impairment to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable for the loss of such member.

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(q) No benefits shall be awarded or payable in this Paragraph unless the percentage of the anatomical loss of use or amputation, as provided in Subparagraphs (a) through (o) of this Paragraph or the percentage of the loss of physical function as provided in Subparagraph (p) or (s) of this Paragraph is as established in the most recent edition of the American Medical Association's “Guides to the Evaluation of Permanent Impairment.”

Louisiana courts have recognized that pursuant to La. R.S. 23:1221(4)(q), the percentage of anatomical loss must be established according to the most recent edition of the AMA's Guides to the Evaluation of Permanent Impairment. See Ashley v. Stelly's Cajun Yams, 98-2209 (La. 12/11/98), 721 So.2d 894; Lanoue v. All Star Chevrolet, 03-12 (La. App. 1 Cir. 11/7/03), 867 So.2d 755, 759-60. In Sumrall v. Crown Zellerbach Corp., 525 So.2d 272, 274 (La. App. 1st Cir. 1988), the First Circuit further recognized that “the import of the clear language of [La. R.S.] 23:1221(4)(q) does not permit the use of lay testimony in determining the percentage of disability under [La. R.S.] 23:1221(4).”

The determination by the workers’ compensation court as to whether the claimant has discharged his burden of proof is a factual determination that will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Loewen, 367 So.3d at 853-54. The manifest error/clearly wrong standard of appellate review applies in workers’ compensation cases even when the court's decision is based upon written reports, records or depositions. Id. at 854. The findings of a workers’ compensation judge will not be set aside unless the reviewing court finds them to be clearly wrong in light of the record viewed in its entirety. Dean v. Southmark Const., 03-1051 (La. 7/6/04), 879 So.2d 112, 117. Furthermore, a workers’ compensation judge is given wide discretion in ruling on the admissibility of evidence, and those determinations will not be disturbed absent a clear showing of abuse of that discretion that has prejudiced substantial rights. Burkett v. Jefferson Par. Fire Dep't, 24-335 (La. App. 5 Cir. 1/29/25), 404 So.3d 1051, 1058, writ denied, 25-308 (La. 5/29/25), 410 So.3d 149.

The issue on appeal is whether the workers’ compensation court erred by finding that the impairment rating prepared by Mr. Garretson and approved by Dr. Ylanan failed to meet the requirements set forth in La. R.S. 23:1221(4)(q). Mr. Loewen argues that the court found the degree of impairment must be determined by “medical expert opinions,” but it is unclear what the court intended by this finding. Mr. Loewen further argues that La. R.S. 23:1221(4)(q) does not delineate the type of expert witness required to satisfy the requirements of this statute. Defendants argue, on the other hand, that Louisiana courts require a licensed physician to establish the impairment rating and the workers’ compensation court correctly determined that Mr. Garretson was not qualified to provide an expert opinion in this case.

We agree that the language in Section 23:1221(4)(q), requiring a claimant to establish the anatomical loss of use in accordance with the AMA guidelines, indicates that expert medical evidence is necessary. But La. R.S. 23:1221(4)(q) does not state that a licensed physician is the only medical expert who can establish an AMA impairment rating. More significantly, the statute does not contain any language that would prohibit a physician from referring the preparation of the AMA impairment rating to another provider, and then adopting or approving the impairment rating, as occurred in the instant matter. See, e.g., Douglas v. Kitchen Bros. Mfg,, 30,637 (La. App. 2 Cir. 6/24/98), 715 So.2d 663, 665 (explaining that orthopedic surgeon who opined on the claimant's impairment rating sent the claimant to a physical therapist “for an assessment of his disability and an impairment rating” prior to providing an opinion).

Regardless, it is not necessary for this Court to reach a determination as to whether health care providers other than physicians can provide an expert opinion regarding an AMA impairment rating. After considering the entirety of the record, we find that the workers’ compensation court was manifestly erroneous in concluding that Mr. Loewen failed to establish his impairment rating in accordance with La. R.S. 23:1221(4)(q). There is no dispute that Dr. Ylanan was qualified to provide an impairment rating, and the undisputed facts outlined above indicate that the workers’ compensation court's finding that Dr. Ylanan did not participate in the “examination, review, or calculation of the impairment rating” was clearly wrong. Dr. Ylanan explained in his communications with Mr. Loewen's counsel that it was his practice to refer workers’ compensation patients to a physical therapist to prepare an FCE and impairment rating, and that he would need to reevaluate Mr. Loewen. In fact, Dr. Ylanan met with Mr. Loewen the day after Mr. Garretson prepared the impairment rating for the specific purpose of conducting an examination and to review the FCE and impairment rating. During his examination of Mr. Loewen's knee, Dr. Ylanan noted that he found crepitus, just as Mr. Garretson did in the physical findings portion of the impairment rating report. Dr. Ylanan also provided a detailed summary of Mr. Loewen's subjective complaints regarding his pain and limitations. After completing these tasks, Dr. Ylanan confirmed in his report that he reviewed and agreed with the 11% percentage assessed for the impairment rating.  ¹¹ Clearly, the intent of this entire process was for Functional Testing to prepare the impairment rating and for Dr. Ylanan to review and approve the finding. There is no prohibition against this practice in La. R.S. 23:1221(4)(q).

We further find that the workers’ compensation court was manifestly erroneous to the extent it determined that the impairment rating prepared for Dr. Ylanan was inadequate because Mr. Garretson did not have an occupational therapist license. At the time he prepared the impairment rating, Mr. Garretson had an undergraduate degree in exercise science, a doctorate degree in occupational therapy, and specific training on Sixth Edition impairment ratings through an outside course and from his employer, Functional Testing. Mr. Garretson's curriculum vitae attached to his deposition also confirms that he had prepared 150 impairment ratings since 2017. Mr. Garretson also provided detailed testimony regarding the steps he followed in accordance with the AMA guidelines to prepare Mr. Loewen's impairment rating. And Mr. Garretson testified that because he did not have his license at that time, Mr. Jones reviewed his “impairment ratings before we send them to the doctor.”

Finally, defendants have not pointed to any specific inaccuracies with respect to the calculations set forth in the impairment rating report. And they have not offered any medical expert testimony to rebut the 11% impairment rating assigned to Mr. Loewen's left knee.

Based on the foregoing, we find that the workers’ compensation court was manifestly erroneous in its determination that Mr. Loewen “failed to establish his disability or impairment rating ․ pursuant to La. R.S. 23:1221(4)(q).” The impairment rating completed by Mr. Garretson was reviewed and approved by a licensed physical therapist and was adopted by Mr. Loewen's treating orthopedic surgeon, Dr. Ylanan, after an examination and review. Thus, we find that the impairment rating offered by Mr. Loewen constitutes competent expert medical evidence to satisfy his burden to prove the percentage of the anatomical loss of use of his left knee as established in the most recent edition of the AMA's Guides to the Evaluation of Permanent Impairment.

PPD Award

Mr. Loewen contends that pursuant La. R.S. 23:1221(4)(h) and (o), he is entitled to 11% of 175 weeks of benefits. He further contends that the “Employee's Workers’ Compensation Rate is equal to the Statutory Maximum Workers’ Compensation Rate” in effect at the time of his injury “as published by the Louisiana Workforce Commission Office of Workers’ Compensation Administration in accordance with La. R.S. 23:1202, which is $688.00.” At the second trial, defendants stipulated that if the court awarded PPD benefits, Mr. Loewen would be entitled to receive the applicable maximum workers’ compensation rate in the amount of $688.00 per week.

Mr. Loewen contends that multiplying this amount ($688.00) by one hundred seventy-five (175) weeks as provided in La. R.S. 23:1221(4)(h) amounts to $120,400.00. This amount ($120,400.00) is multiplied by the 11% loss of function/impairment rating pursuant to La. R.S. 23:1221(4)(o), to determine that Mr. Loewen is entitled to $13,244.00 for his PPD award. Defendants do not dispute these calculations in their appellate brief.

Accordingly, we award Mr. Loewen $13,244.00 in PPD benefits.

Penalties and Attorney's Fees

Mr. Loewen also contends that the workers’ compensation court erred by failing to award him attorney's fees and costs.

Awards of penalties and attorney's fees in workers’ compensation matters are essentially penal in nature, being imposed to discourage indifference and undesirable conduct by employers and insurers. Williams v. Rush Masonry, Inc., 98-2271 (La. 6/29/99), 737 So.2d 41, 46. Pursuant to La. R.S. 23:1201(F), an employer or insurer may be assessed with penalties and attorney's fees for failure to timely pay indemnity or medical benefits where the employer or insurer has failed to “reasonably controvert” the claim. Stretzinger v. Claims Mgmt., Inc., 19-168 (La. App. 5 Cir. 12/11/19), 285 So.3d 591, 599. To determine whether a claimant's right to benefits has been reasonably controverted, thereby precluding the imposition of penalties and attorney's fees under La. R.S. 23:1201, a court must ascertain whether the employer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay the benefits allegedly owed. Id.

We find that Mr. Loewen is not entitled to recover penalties and attorney's fees from defendants. Mr. Loewen sought PPD benefits as an alternative reward and he produced the impairment rating necessary to recover these benefits after the discovery deadline. In addition, we do not find that defendants’ legal challenges to validity of the impairment rating were frivolous under the circumstances at issue in this matter.

CONCLUSION

For the reasons explained above, we reverse the workers’ compensation court's February 10, 2025 judgment and grant judgment in favor of claimant, Mitchell Loewen, in the amount of $13,244.00 for permanent partial disability benefits. We further order defendants, The New Orleans Louisiana Saints, LLC and Berkley Specialty Underwriting Managers, LLC, to pay the costs of these proceedings, but deny Mr. Loewen's claims for penalties and attorney's fees.

REVERSED; JUDGMENT RENDERED

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

CURTIS B. PURSELL CLERK OF COURT

SUSAN S. BUCHHOLZ CHIEF DEPUTY CLERK

LINDA M. TRAN FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY DECEMBER 4, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CURTIS B. PURSELL CLERK OF COURT

25-CA-304

E-NOTIFIED

OFFICE OF WORKERS’ COMPENSATION, DISTRICT 7 (CLERK)

HON. SHANNON BRUNO BISHOP (DISTRICT JUDGE)

SHANNON C. LINDSEY (APPELLANT)

CHRISTOPHER J. KANE (APPELLEE)

EDWIN G. LAIZER (APPELLEE)

MAILED

FRANK A. BRUNO (APPELLANT)

ATTORNEY AT LAW

262 CITRUS ROAD

NEW ORLEANS, LA 70123

FOOTNOTES

1.   La. R.S. 23:1221(4)(q) provides that “[n]o benefits shall be awarded or payable in this Paragraph unless the percentage of the anatomical loss of use or amputation, as provided in Subparagraphs (a) through (o) of this Paragraph or the percentage of the loss of physical function as provided in Subparagraph (p) or (s) of this Paragraph is as established in the most recent edition of the American Medical Association's ‘Guides to the Evaluation of Permanent Impairment.’ ”

2.   This amount is the maximum weekly workers’ compensation rate in effect in December 2019, as published by the Louisiana Workforce Commission Office of Workers’ Compensation Administration in accordance with La. R.S. 23:1202.

3.   The parties agree that the Sixth Edition is the most recent edition of the AMA's Guides to the Evaluation of Permanent Impairment.

4.   Mr. Loewen returned home to Maui in Hawaii after he ended his NFL football career. He contends that he was unable to find an orthopedic surgeon who would treat him in Maui due to his pending workers’ compensation claims. Therefore, he sought treatment with his former orthopedic surgeon, Dr. Ylanan, who treated him when he attended college and played football at the University of Arkansas.

5.   Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

6.   Mr. Garretson testified that the protocol for FCEs used by Functional Testing was designed with the assistance of Jill Galper, “who wrote the book on Functional Capacity Evaluations.”

7.   Contrary to defendants’ representation, defense counsel did not ask Mr. Garretson about qualifications required to conduct an impairment rating. Rather, defense counsel asked Mr. Garretson what the requirements were to conduct an FCE and Mr. Garretson explained that it was his understanding that you had to have a bachelor of science degree, but that it may not always be required. He explained that Functional Testing requires a degree and that they hire athletic trainers, physical therapists, occupational therapists, and exercise physiologists/kinesiologists to perform FCEs. He explained that some insurances companies require licensed therapists and some do not. He further testified that all of Functional Testing employees have certifications through multiple providers to perform FCEs.

8.   At the time of his deposition in February 2022, Mr. Garretson had obtained his occupational therapist license and board certification from the National Board for Certification in Occupational Therapy. His curriculum vitae indicates that he received his certification and license in 2021. Mr. Garretson also testified that he had become a co-owner of Functional Testing.

9.   As explained above, Mr. Jones electronically signed Mr. Loewen's impairment rating. Mr. Garretson also explained that Mr. Jones was included on FCE reports prepared by Mr. Garretson for billing purposes because some insurance companies preferred to have a licensed physical therapist or occupational therapist listed on the report.

10.   In 2024, the Louisiana legislature amended Article 1425(F)(1) to provide that “[a] party seeking to challenge whether a witness qualifies as an expert or whether the methodologies employed by the witness are reliable under Code of Evidence Articles 702 through 705 shall file a motion for a pretrial hearing.” (Emphasis added). See La. Acts 2024, No. 371, § 1.The 2024 comment to this amendment explains that the Louisiana legislature changed the language from “may” to “shall” to address jurisprudence holding that the prior version of Article 1425(F)(1) did not require a pre-trial motion to challenge an expert's qualifications:The amendment to Paragraph F of this Article makes clear that a pretrial hearing is necessary to determine whether a witness qualifies as an expert or whether the methodologies employed by the witness are reliable. This would change the result reached by the First Circuit in Williams v. State Farm Mutual Automobile Insurance Company, 322 So.3d 795, 797 (La. App. 1 Cir. 2021), in which the court held that the use of the permissive “may” did not mandate a pretrial motion to challenge the qualifications of an expert.

11.   La. Admin. Code, Tit. 40, Pt. I. § 6209 governs expert medical testimony in workers’ compensation proceedings and provides that “[e]xpert medical testimony may be admitted by: 1. certified medical records; 2. deposition; 3. oral examination in open court proceedings; however, no more than two physicians may present testimony for either party except by order of the judge; 4. any other manner provided by law.”

SCOTT U. SCHLEGEL JUDGE